The Trump administration was foolish to believe it could deport aliens with no due process.

T he Supreme Court has unanimously rebuked the Trump administration’s warrantless capture and deportation of Kilmar Armando Abrego Garcia to El Salvador, the one place on the planet where it was illegal to send him. It has, moreover, rejected the Trump Justice Department’s untenable claim that neither the government nor the judiciary has jurisdiction to effectuate Abrego Garcia’s return to the United States because he is now in the custody of El Salvador — which has detained him for nearly a month under conditions condemned by our own State Department.

The Court’s ruling was issued on Thursday evening. It is mostly an unsigned directive that Abrego Garcia be returned to American custody. (It would be more accurate, I contend, to say direct American custody since I believe he is already in constructive American custody, as explained below.) That succinct opinion is supplemented by a “statement” from Justice Sonia Sotomayor, joined by her progressive colleagues, Justices Elena Kagan and Ketanji Brown Jackson.

I have extensively covered the Abrego Garcia case. (See here, here, and here.)

The alien is an El Salvadoran national who came to the United States illegally in 2012, at the age of 17. He was detained in 2019. There is suggestion in the record that he was a suspect in a murder investigation, but he was never charged, much less convicted of homicide. In fact, he has no criminal record in the United States or, it appears, any other country. The record otherwise suggests he was simply picked up for loitering. (Of course, that could conceivably have been a pretext while the authorities investigated some gang-related homicide, but the point is there is no known evidence of Abrego Garcia’s involvement in a violent crime of any kind.)

The government has suggested that he is or was a member of MS-13 — Mara Salvatrucha, the vicious international criminal enterprise that the Trump State Department formally designated as a terrorist organization on February 20. Nevertheless, the proceedings in the lower courts have shown that, to date, the government’s evidence tying Abrego Garcia to MS-13 is gossamer thin. Indeed, it declined even to attempt to prove such a connection in the proceedings before Judge Paula Xinis, the Obama appointee to the federal district court in Maryland who, last week, initially ordered the government to effectuate Abrego Garcia’s return to the United States.

Because Abrego Garcia was an illegal alien (he has never been legally present in the United States), removal proceedings were conducted in the immigration court after his 2019 detention. Importantly, the immigration court is not an Article III judicial court; it is a component of the Justice Department, although its rulings are binding if the Justice Department fails to appeal them. Abrego Garcia was ordered removed, but an immigration judge granted his petition for “withdrawal of removal” to El Salvador. This means he could theoretically be deported anywhere except his native country, with the immigration judge having accepted his (dubious, uncorroborated) claims that he feared persecution by a Salvadoran gang if repatriated.

(While the Justice Department represented to Xinis that there is no 2019 removal order in the record, the Fourth Circuit later noted that there must have been one because withdrawal is granted subsequent to such an order.)

The Justice Department in President Trump’s first term failed to appeal the immigration court order prohibiting Abrego Garcia’s deportation to El Salvador. Even though he remained an illegal alien, the Trump DOJ also allowed him to be released and given permission to work. The 2019 order thus remains binding. Because the immigration courts are subordinate to the attorney general, there is a procedure by which Trump’s current attorney general, Pamela Bondi, could have moved to reverse the 2019 order that Abrego Garcia not be deported to El Salvador. Bondi, however, failed to avail herself of that process.

Instead, on March 12, 2025, immigration agents arrested Abrego Garcia in Maryland, where he was living with his American citizen wife and their children. Thus far, there is no indication that the agents had a warrant. The government swiftly transported Abrego Garcia to Texas, along with hundreds of other aliens — many are suspected members of the Venezuelan Tren de Aragua (TdA) gang. By March 15, Abrego Garcia was among the 261 aliens turned over to the government of El Salvador; they have been lodged ever since in that country’s notorious Terrorism Confinement Prison (CECOT) in the municipality of Tecoluca.

Lawyers for Abrego Garcia and his family have sued the government to attempt to force his return to the United States. In proceedings before Xinis, the Justice Department conceded that he was illegally deported to El Salvador. Erez Reuveni, recently promoted by Bondi as acting deputy director of DOJ’s Office of Immigration Litigation, acknowledged that he had not gotten a satisfactory answer from government officials about why — since the government is patently in the wrong — they had not brought Abrego Garcia back from El Salvador. Reuveni did, nevertheless, argue the government’s unpersuasive positions that, because the alien was now in another country’s custody, (a) the Trump administration was not in a position to force his return, (b) the court had no jurisdiction to order his return, and (c) the court’s meddling was an unconstitutional intrusion on Trump’s executive power to conduct foreign policy. (Bondi and Deputy Attorney General Todd Blanche nevertheless suspended Reuveni for insubordination — apparently for the intolerable sin of honestly answering a federal judge’s questions.)

Xinis rejected DOJ’s contentions and gave the government a deadline of last Monday night to return Abrego Garcia to the United States. Earlier in the day on Monday, a three-judge panel of the Fourth Circuit Court of Appeals unanimously affirmed that order.

In last night’s ruling, the Supreme Court also sustained Xinis’s ruling — though it did so in a manner that mirror’s the Court’s approach a month ago, when another federal judge, Amir Ali (a Biden appointee in Washington, D.C., federal court), gave the government a similar deadline to pay out certain foreign-aid funding. That is, by first intervening on Monday afternoon and ordering an administrative stay, Chief Justice John Roberts effectively nullified Xinis’s midnight deadline (since the proceedings were frozen at that point until the Court acted). And, just as it did with Judge Ali, the Court then upheld Xinis’s order but instructed her to provide “clarification” on remand.

This is a fig leaf to allow the Trump administration some face-saving — the president can dubiously claim that the justices rejected Xinis’s order because, as the Justice Department has contended, it intruded on the president’s foreign policy power. (Predictably, that is just what a Trump DOJ spokesman did after the Court ruled.)

That’s not what has happened. The Court unanimously agrees that Xinis may order the administration to get Abrego Garcia back. Yet, without expressly saying so, it is instructing Xinis to rephrase her order — that the Trump administration “effectuate” Abrego Garcia’s return — so that it heeds the concerns expressed by Judge J. Harvie Wilkinson, in his Fourth Circuit concurring opinion (which I outlined here).

Wilkinson (a justifiably influential Reagan appointee) observed that the perception that a federal judge could be ordering the executive branch to compel a foreign government to take an action was fraught with separation-of-powers problems (not least the practical problem that an American court lacks any authority over a foreign regime). Yet, he acknowledged, it would be unacceptable if

the government could whisk individuals to foreign prisons in violation of court orders and then contend, invoking its Article II powers, that it is no longer their custodian, and there is nothing that can be done. It takes no small amount of imagination to understand that this is a path of perfect lawlessness, one that courts cannot condone.

Consequently, Wilkinson reasoned that the court had jurisdiction to order the government to do what was in its power to “facilitate” the alien’s return. To those with an ear for these things, facilitate is less imperious than effectuate.

The Supreme Court is basically telling Xinis to do what Wilkinson suggests:

The intended scope of the term “effectuate” in the District Court’s order is . . . unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.

That last sentence is a subtle derision of the Trump administration’s recalcitrance during last Friday’s hearing. Recall that Xinis asked why the government hadn’t already returned Abrego Garcia, to which DOJ’s lawyer, Reuveni, conceded that he had asked that very question but had not been given a satisfactory answer. The Supreme Court is saying: This time, the government must provide satisfactory answers.

As I’ve contended, the Trump administration does not want to answer the question because it knows that an honest response would demonstrate that it can easily obtain the return, not only of Abrego Garcia but of all of the aliens it deported to El Salvador — aliens whom, it now admits, were entitled to file habeas corpus challenges before being deported.

At the start of this piece, I noted that the government still has constructive custody of these aliens — i.e., it has not relinquished dominion and control to El Salvador. To the contrary, that country’s regime has announced that its arrangement with our government is, in exchange for being paid $6 million, to hold detainees for one year, at which point the Trump administration will determine their disposition. That means our government has merely parked the detainees in El Salvador for a limited time; what happens to these detainees it is still up to American officials — which, of course, means the Salvadorans will return them to our government now if Trump officials ask them to do that.

Three last points.

First, there are some problems with the Court’s brief opinion. It states:

The United States alleges . . . that Abrego Garcia has been found to be a member of the gang MS–13, a designated foreign terrorist organization, and that his return to the United States would pose a threat to the public.

It is not clear in what form or forum Abrego Garcia “has been found to be a member of MS-13.” The government’s weak evidence (mainly, an uncorroborated informant report) was presented in the 2019 bail portion of the removal hearing. The alien not only was not found to be a member of MS-13; he was ultimately released on bail and permitted to work (and, again, reportedly has a clean criminal record). As the Fourth Circuit noted, the government presented no evidence to Xinis that Abrego Garcia was an MS-13 member. As for the claim that he “would pose a threat to the public,” as the Fourth Circuit also observed, the Trump DOJ abandoned that claim in the hearing before Xinis. If you wonder why the Supreme Court occasionally bristles at the proliferation of cases on its emergency docket, it’s because the compressed time frame lends itself to error and confusion about the factual record.

Second, Sotomayor’s statement builds on her expression of outrage in Monday’s ruling in the case involving the Venezuelan TdA suspects deported to El Salvador without due process — a dissenting opinion similarly joined by Justices Kagan and Jackson. Like two of their colleagues on the Fourth Circuit (Judges Robert King and Stephanie Thacker, who were also appointed by Democratic presidents), the Court’s progressives are not as concerned as Wilkinson is, and as the Court’s conservatives appear to be, about intruding on the president’s Article II power to conduct foreign policy. It could be that, as progressives, they’re just not that worried about separation-of-powers principles. But it could also be that, on the facts of this case (as I explained above), it simply is not true that the U.S. government has completely surrendered control of the aliens to El Salvador. With the Court having remanded the case to Xinis, I expect that the record of the agreement between the State Department and President Nayib Bukele’s government will be more fully developed.

Finally, I have contended that the Trump administration was foolish to believe it could deport aliens with no due process since, in the Supreme Court’s post-9/11 jurisprudence, it gave due process rights even to alien enemy combatants who had never set foot on American soil and were detained in wartime outside the jurisdiction of American courts. (See here, citing Hamdi v. Rumsfeld (2004), Rasul v. Bush (2004), and Boumediene v. Bush (2008).) Hence, I could not help but notice this passage from Sotomayor’s statement:

The Government now requests an order from this Court permitting it to leave Abrego Garcia, a husband and father without a criminal record, in a Salvadoran prison for no reason recognized by the law. The only argument the Government offers in support of its request, that United States courts cannot grant relief once a deportee crosses the border, is plainly wrong. See Rumsfeld v. Padilla . . . (2004); cf. Boumediene v. Bush . . . (2008).

We’ll watch what develops from here. I don’t believe the Trump administration will defy the Supreme Court — from which it is hoping for favorable rulings in its battle to bring the administrative state under tighter presidential control.

As the coverage of these proceedings shows, I am not famously successful at persuading the administration to take my advice, but I’ll offer it anyway: You would be much better off just bringing all of the deported aliens back to the United States, without being ordered to do so, and letting them file the habeas corpus and other legal challenges they are entitled to bring. In the end — even if it would be a terrible mistake to send them to El Salvador if we have reason to believe their treatment could violate the 1984 Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment of Punishment — you will probably be able to deport the vast majority of them.